City of Clute v. City of Lake Jackson, No. 1506

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: COULSON
• Citation: 559 S.W.2d 391
• Docket Number: No. 1506
• Decision Date: 31 October 1977
• Parties: The CITY OF CLUTE, Texas, Appellant, v. The CITY OF LAKE JACKSON, Texas, Appellee. (14th Dist.)

Page 391

559 S.W.2d 391 The CITY OF CLUTE, Texas, Appellant, v. The CITY OF LAKE JACKSON, Texas, Appellee. No. 1506. Court of Civil Appeals of Texas, Houston (14th Dist.). Oct. 31, 1977.
Rehearing Denied Dec. 21, 1977.

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W. N. Shaw, City Atty., City of Clute, Freeport, Waggoner Carr, Chris D. Harsdorff, Austin, for appellant.

William S. Olson, Jr., Olson & Olson, Houston, John E. Dewey, City Atty., Lake Jackson, for appellee.

COULSON, Justice.

This is an appeal from a consolidated action in which both the appellant, City of Clute, and the appellee, City of Lake Jackson, sought a declaratory judgment invalidating the ordinances by which the other had annexed certain areas. After a nonjury trial, the district court rendered judgment upholding the validity of the Lake Jackson annexation and declaring all of the Clute annexation ordinances invalid. At the request of Clute, the court filed findings of fact and conclusions of law. We affirm in part and reverse and render in part.

Lake Jackson and Clute are home rule cities situated in Brazoria County. According to the 1970 federal census, Lake Jackson has a population of 13,376 and Clute has a population of 6,023. Clute lies basically east of Lake Jackson; less than one mile separates the two cities.

On July 2, 1960, the City Council of Lake Jackson passed Ordinance No. 248. This ordinance, together with its subsequent amendment, annexed a large tract of land to the west and south of Lake Jackson, plus a strip of land encircling an area occupied by a Dow Chemical Company plant.

The City Council of Clute passed Ordinance No. 309 on October 10, 1968; Ordinance No. 336 on October 23, 1969; Ordinance No. 362 on April 13, 1972; Ordinance No. 375 on November 27, 1972; and Ordinance No. 73-11 on August 9, 1973. Part of the territory annexed by Ordinances No. 309, 362, and 375 lies between the eastern boundary of Lake Jackson and the western boundary of Clute. The remaining ordinances annexed land to the south of Clute.

The City of Clute appeals on seventeen points of error, which relate to four different topics: Lake Jackson's Ordinance No. 248, the effect of two agreements entered into by the cities, and the Clute ordinances. We will discuss each of these matters separately.

LAKE JACKSON ORDINANCE NO. 248

Clute's first two points of error contend the trial court erred in holding that the issue of non-adjacency of the territory annexed by Lake Jackson Ordinance No. 248 was not raised in Clute's pleadings, was not

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tried by consent, and these matters notwithstanding, the territory annexed by No. 248 was at the time of passage of the ordinance, and is now, adjacent to Lake Jackson. While we agree with all the conclusions of the trial court, we need only discuss the issue of adjacency since our holding on that matter obviates discussion of the others.

Among the enumerated powers granted to home rule cities is the power to annex adjacent territory. Tex.Rev.Civ.Stat.Ann. art. 1175(2) (1963); State ex rel. Pan Am. Prod. Co. v. Texas City, 157 Tex. 450, 452, 303 S.W.2d 780, 781 (1957). The Texas Supreme Court reviewed the law on adjacency in Fox Dev. Co. v. City of San Antonio, 468 S.W.2d 338, 339-41 (Tex.Sup.1971):

Rules of long standing in our State were reaffirmed in State ex rel. Pan American Production Co. v. Texas City, supra. It was there repeated that the only limitation on the power of a city to annex additional territory is that it be adjacent to the city and not included within the boundaries of any other municipality; and "that the Legislature used the term (adjacent) in the sense of being 'contiguous' and 'in the neighborhood of or in the vicinity of,' without reference to the character of the land or the use to which it is put." . . .

City of Pasadena v. City of Houston, 442 S.W.2d 325 (Tex.Sup.1969) and City of Irving v. Dallas County Flood Control District, 383 S.W.2d 571 (Tex.Sup.1964), upon which petitioner principally relies, are not apposite. The problem in each of these cases was whether the respective territories, which were contiguous to each of the competing Home Rule cities and patently adjacent to the contesting cities, would also be considered adjacent in law to the cities attempting annexation. The holdings were not that there could be no adjacency in the statutory sense as to the annexing cities, which had lesser contiguity, but that the other cities had controlling adjacency. This rested upon the disproportionate touching of the respective city boundaries, and not upon the size, shape or character of the strips of land in question in relation to the cities involved. (Emphasis added.)

In the Pasadena and Irving cases, the territory attempted to be annexed abutted the boundaries of another city over a much greater distance than it abutted the boundaries of the annexing city. None of the territory annexed by Ordinance No. 248 touches the boundaries of Clute as they existed when the ordinance was enacted. There is some evidence in the record that the City of Freeport is adjacent to a portion of the territory annexed, but we are unable to determine the extent of the "touching", if any. We realize that much of the territory annexed is closer to Clute than it is to Lake Jackson, but that is not the test set out in Fox Development.

In 1976, the supreme court was urged to re-examine and overrule Fox Development in City of Wichita Falls v. State ex rel. Vogtsberger, 533 S.W.2d 927, appeal dismissed, 429 U.S. 908, 97 S.Ct. 298, 50 L.Ed.2d 276 (1976). Instead, the court strengthened the holding of Fox Development :

Traditionally, the courts of this State have not scrutinized the purpose of annexation ordinances or the use or character of the occupation of the annexed territory. Nor have our courts prescribed shape limitations. These are legislative prerogatives. . . . Where there is compliance with statutory requirements, as here, the annexation ordinance must stand whether the attack is direct by quo warranto or collateral.

533 S.W.2d at 929, 930.

We affirm the trial court's conclusion of law that the territory annexed by Ordinance No. 248 was at the time of passage and is now adjacent to the City of Lake Jackson.

Clute's third and fourth points of error attack the trial court's finding of fact and conclusion of law that the description of the territory annexed by Ordinance No. 248 closes, constitutes a continuous, unbroken line, is sufficient to locate the territory on the

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ground, and effectively describes territory contiguous to Lake Jackson. Clute contends that the ordinance omits a call or calls necessary to properly and sufficiently describe a point for a corner. The call in issue reads:

THENCE continuing in a northwesterly direction on a line 10 ft. from and parallel to the corporate limits of the said Village of Lake Barbara said corporate limits being along the north and northeast lines of Tracts No. 551, 553 and 555 all of said Subdivision No. 14, A. Calvit League, Abstract No. 49, to a point for a corner, said corner being on the intersection between the said northeast line of said Tract No. 555 and the proposed southerly right-of-way line of the new location of State Highway No. 332.

Clute bases its contention that the description fails on disputes, extensively developed during the trial, as to the location of Lake Barbara's corporate limits and the effects of changes in the right-of-way line along State Highway 332.

Expert witnesses testified for both parties. Robert Adams, a registered public surveyor licensed by the State of Texas, testified for Clute that the property description in Ordinance No. 248 does not close; David Lawson, a registered engineer licensed by the State of Texas, testified for Lake Jackson that it does.

A city annexation ordinance containing a description which does not close is void, and a call cannot be added to such ordinance by showing that the enacting body intended the call to be included. State ex rel. Rose v. City of La Porte, 386 S.W.2d 782, 788-89 (Tex.Sup.1965). But that is not the case here. The...